Article 23. MISCELLANEOUS
23.1 Hcadings, Table of Contents, Gender and Language Usage. The headings, table of contents, gender and language usage used herein are for purposes of convenience only and shall not be used in constructing the provisions hereof. As used herein, the male gender shall include the female and neuter genders, the singular shall include the plural, and the plural, the singular.
23.2 Injunctive Relief. You recognize the unique value and secondary meaning attached to our franchised business system, our trade names, service marks, trademarks, logotypes, commercial symbols, standards of operation and the trade practices and agree that any noncompliance with the terms of this agreement or any unauthorized or improper use will cause irreparable damage to us and our franchisees. You therefore agree that if you should engage in any such unauthorized or improper use, during or after the period of this franchise, we shall be entitled to apply for both permanent and temporary injunctive relief from any arbitration panel or court of competent jurisdiction in addition to any other remedies prescribed by law.
23.3 Arbitration. A. Except as specifically modified by this Article, any controversy or claim arising out of or relating to this agreement or its breach, including without limitation, any claim that this agreement or any of its parts is invalid, illegal or otherwise voidable or void, shall be submitted to arbitration before and in accordance with the arbitration rules of Franchise Arbitration and Mediation, Inc. (“FAM”) or, upon mutual consent of us and you, or, if FAM is unable to conduct said arbitration, then before the American Arbitration Association in accordance with its Commercial Arbitration Rules. We and you agree that arbitration shall be conducted on an individual, and not a class-wide basis and that there shall be three neutral arbitrators that are recognized franchise attorneys.
A. The provisions of this Article shall be construed as independent of any other covenant or provision of this Agreement; provided that if a court of competent jurisdiction determines that any such provisions are unlawful in any way, such court shall modify or interpret such provisions to the minimum extent necessary to have them comply with the law. Notwithstanding any provision of this agreement relating to under which state laws of this Agreement shall be governed by and construed, all issues relating to arbitrability or the enforcement of the agreement to arbitrate contained herein shall be governed by the Federal Arbitration Act (9 U.S.C. Section 1 et seq.) and the federal common law of arbitration
B Judgement upon an arbitration award may be entered in any court having competent jurisdiction and shall be binding, final and non-appealable. We and you (and our respective owners and guarantors, if applicable) hereby waive to the fullest extent permitted by law, any right to claim for any punitive or exemplary damages against the other and agree that in the event of a dispute between us and/or them each shall be limited to the recovery of any actual damages sustained by it.
C. Prior to any arbitration proceeding taking place, we or you may, at our respective option, elect to (1) have the arbitrator(s) conduct, in a separate proceeding prior to the actual arbitration, a preliminary hearing, at which hearing testimony and other evidence may be presented and briefs may be submitted, including without limitation a brief setting forth the then applicable statutory or common law methods of measuring damages in respect to the controversy or claim being arbitrated, or (2) submit the controversy or claim to non-binding mediation before FAM or other mutually agreeable mediator, in which event both parties shall execute a suitable confidentiality agreement.
D. This arbitration provision shall be deemed to be self-executing and shall remain in full force and effect after expiration or termination of this agreement. In the event either party fails to appear at any properly noticed arbitration proceeding, an award may be entered against such party by default or otherwise notwithstanding said failure to appear. Arbitration and/or mediation shall take place at Daytona Beach, Florida, unless otherwise agreed by us and you.
E. The obligation herein to arbitrate or mediate shall not be binding upon either party with respect to claims relating to our trademarks, service marks, patents, and copyrights; claims related to any lease or sublease of real property between the parties or their affiliated entities; requests by either party for temporary restraining orders, preliminary injunctions or other procedures in a court of competent jurisdiction to obtain interim relief when deemed necessary by such court to preserve the status quo or prevent irreparable injury pending resolution by arbitration of the actual dispute between the parties.